LD-2005-002, WOLTERBEEK'S CASE

the Village Grocer and, in October 1995, held a foreclosure sale at which there At the same time, Shawmut Bank was in the process of foreclosing on

the respondent advised Schneider to file for bankruptcy. the “Village Grocer”). In late 1995, aware of Schneid er’s financial difficulties, awarded the Village Grocery Store and its premises (collectively referred to as building as the respondent’s law office. In the divorce decree, Schneider was owned the Village Grocery Store i n Rindge since 1985, which was in the same represented Richard Schneider in his divorce. Schneider and his then - wife had The committee found the following facts. In 1995, the respondent

law for two years. We order the respondent disbarred. that the respondent, Mark E. Wolterbeek, be suspended from the practice of Conduct Committee (committee) filed a petition with this court recommending DUGGAN, J. On February 14, 2005, the Supreme Court Professional

Shklar on the brief and orally), for the respondent.

Elliott, Jasper, Auten, Shklar & Anderson, LLP, of Newport (Michael C.

professional conduct committee.

Landya B. McCafferty, of Concord, on the brief and orally, for the

No. LD - 200 5 - 002 Original

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

Quitclaim Deed” amending the name of the grantee from “REMY Limited October 10, p. 2 2002, he met with the respondent and signed a “Corrective In the fall of 2002, Sc hneider moved back to New Hampshire. On

general partners and Chapman as limited partner. Partnership with the Secretary of State listing the respondent and his wife as Grocer from Granite Bank. The next day, REMY filed a certificate of Limited On April 8, 1996, REMY obtained a $75,000 lo an secured by the Village

February 6, 1996, Schneider received a discharge in bankruptcy. Shawmut Bank. In mid - November 1995, Schneider moved to Florida. On mention the quitclaim deed or that REMY had acquired the mortgages from stated that Shawmut Bank had foreclosed on the Village Grocer but did n ot foreclosure sales within one year preceding filing of the petition, the petition the Village Grocer to be $ p. 2 25,000. In response to a question concerning Village Grocer in the amount of $169,276.98 an d estimated the market value of secured claims, the petition listed Shawmut Bank as having a mortgage on the case,” the petition stated “none.” In a section of the petition concerning as security within one year immediately preceding the commencement of this asking the debtor to list “all other property . . . transferred either absolutely or record title to the Village Grocer. In another section of the bankruptcy petition bankru ptcy petition on October 27, 1995, at which time Schneider still held owned no real estate at the time. However, Schneider had executed the bankruptcy court on behalf of Schneider. The petition stated that Schneider On November 3, 1995, the respondent filed a petition with the

involved in REMY. signatures. Schneider was unaware that the responden t and his wife were and Chapman signed the deed and the respondent and his wife witnessed the October 31, 1995, transferring title to the Village Grocer to REMY. Schneider The respondent then drafted a quitclaim deed that Schneider signed on

REMY’s partners and instead described REMY as a “group of investors.” Bank, the respondent did not reveal to Shawmut Bank that he was one of mortgages it held on the Village Grocer. During the negotiations with Shawmut time. On October 30, 1995, REMY paid Shawmut Bank $ p. 2 25,000 for the three (REMY). The partnership was not registered with the Secretary of State at that signed a partnership agreement forming the REMY Limited Partnership On October 10, 1 995, the respondent, his wife and George Chapman

holding record title to the property. on the property. Largely due to this, Shawmut Bank became uninterested in about gasoline pumps and underground storage tanks that were once located were no bidders. Th e respondent informed Shawmut Bank of his concerns p. 3 3

(Standards) for guidance. Feld’s Case, 149 N.H. 19, 28 (2002), cert. denied, We look to the ABA Standards for Imposing Lawyer Sanctions (1992)

its own facts and circumstances. Flint’s Case, 1 p. 3 33 N.H. 685, 689 (1990). 155, 158 (2005). In deciding the appropriate sanction, we consider the c ase on has occurred and, if so, the appropriate sanction.” Richmond’s Case, 152 N.H. whether, on the facts found, a violation of the rules governing attorney conduct findings if supported by the record, but retain “ultimate authority to determine In attorney discipline matters, we defer to the committee’s factual

before us is whether to adopt the recommended sanction. court su spend the respondent from practicing law for two years. The sole issue recommendation. The committee then filed a petition requesting that this written decision. After reviewing the record, the committee adopted the panel’s the committee recommended a two - year suspension in a December 2, 2004 should be suspended from the practice of law for two year s. A hearing panel of Conduct 1.7(b), 1.8(a), p. 3 3.3(a)(1), 8.4(c) and 8.4(a), and that the respondent convincing evidence that the respondent had violated Rules of Professional respondent and the ADO entere d into a stipulation that there was clear and scheduled for November 19, 2004. Immediately before the hearing, the limitations. See Sup. Ct. R. 37A(I)(i). A hearing on the motion to dismiss was motion to dismiss the charges, arguing they were barred by the statute of Discipline Office (ADO) issued a notice of charges. The respondent then filed a occurred between 1994 and 1996. On October 20, 2004, the Attorney alleging professional misconduct by the respondent based upon the events that On September 24, 2003, Schneider filed a complaint with the committee

office. respondent’s interest in REMY during subsequent discussions at Karonis’ discovery of information not previously disclosed. Schneider first learned of the ex parte motion to reopen Schneider’s bankruptcy case based upon the On August 4, 200 p. 3 3, United States Trustee Geraldine B. Karonis filed an

the registry of deeds. partnership. The respondent also filed the “Corrective Quitclaim Deed” with Chapman a s a limited partner. The respondent’s wife had withdrawn from the Partnership.” The affidavit listed the respondent as a general partner and “REMY Limited Partnership” was the same entity as “REMY Real Estate Limited filed an affidavit with the Cheshire County Registry of Deeds clarifying that $125,000 secured by the Village Grocer. The following day, the respondent By the terms of the refinancing agreement, REMY received an additional loan of On May 1 p. 3 3, 2003, REMY refinanced the mortgage held by Granite Bank.

unaware of the respondent’s interest in REMY. Partnership” to “REMY Real Estate Limited Partnership.” Schneider was stil l p. 4 4

suspension is appropriate when a lawyer “k nowingly deceives a client, and misrepresentation in violation of Rule 8. p. 4 4(c). According to the Standards, interest in REMY to Schneider constituted dishonesty, fraud, deceit and Further, the parties stipulated that the respondent’s failure to disclose his REMY while Schneider was unaware of the respondent’s involvement in REMY. quitclaim deed whereby Schneider transferred title in the Village Grocer to They also stipulated that the respondent violated this rule by drafting the involvement in that purchase to Schneider, the respondent violat ed Rule 1.8(a). mortgages from Shawmut Bank on behalf of REMY without disclosing his Second, the parties stipulated that by acquiring the three Village Grocer

sanction. Based upon the respondent’s miscon duct, disbarment is the appropriate strongly suggest that he intended to benefit himself at Schneider’s expense. respondent’s acts of deceiving Schneider in pursuit of personal financial gain client. The pa rties do not stipulate to the respondent’s mental state, but the the intention to benefit himself. Here, the respondent violated his duty to his interest is between the lawyer and the client and whether the lawyer acts with distinction between suspension and disbarment is whether the conflict of serious injury to the client.” Standards, supra § p. 4 4.31(a). The c ritical intent to benefit the lawyer or another, and causes serious or potentially client knowing that the lawyer’s interests are adverse to the client’s with the without the informed consent of client(s) .. . engages in representation of a client.” Standards, supra § 4.32. Disbarment is warranted “when a lawyer, the possible effect of that conflict, and causes injury or potential injury to a a lawyer knows of a confli ct of interest and does not fully disclose to a client Conduct 1.7(b)(2). According to the Standards, suspension is warranted “when “after consultation and with knowledge of the consequences.” N.H. R. Prof. not d isclose its existence to Schneider, making it impossible for him to consent even if Schneider could have waived the conflict of interest, the respondent did obligor was a conflict of interest in violation of Rule 1.7(b). They stipulate that Shawmut Bank and becoming a holder of notes on which Schneider was an First, the parties stipulated that acquiring the three mortgages from

misconduct falls into three categories. ultimate sanction. Standards, supra, Methodology. Here, the respondent’s sanction, we consider the effect of any aggravating or mitigating factors on the misconduct and identify the appropriate sanction. After determining t he In applying these factors, the first step is to categorize the respondent’s

Kersey’s Case, 1 p. 5 50 N.H. 585, 587, cert. denied, 125 S. Ct. 97 (200 p. 4 4). existence of aggravating or mitigating fac tors.” Standards, supra § 3.0; see the potential or actual injury caused by the lawyer’s misconduct; and (d) the in imposing sanctions: “(a) the duty violated; (b) the lawyer’s mental state; (c) 540 U.S. 815 (2003). The S tandards list the following factors for consideration 5

the disciplinary process alone is not a mitigating factor. Feld’s Case, 149 N.H. investigation and that absent a showing of genuine remorse, cooperation with that a lawyer has a professional duty to cooperate with the committee’s re sponsibility for his misconduct should be a mitigating factor. We have held disciplinary process coupled with genuine remorse and complete acceptance of sanction. The parties stipulate that the respondent’s cooperation with the We next consider the effect of mitigating or aggravating factors on the

suspension is appropriate. Based upon the respondent’s misconduct toward the bankruptcy court, of the United States Trustee to decide to reopen Schneider’s bankruptcy case. bankruptcy petition’s misleading nature and that his actions caused the office omissions through mere oversight, but did so with knowledge of the record support that the respondent did not make misleading statements and misleading petition and failing to subsequently correct it. The facts in the Th e respondent violated his duty to the legal system by submitting a

on the legal proceeding.” Standards, supra § 6.11. injury to a party, or causes a significant or potentially significant adverse effect withholds material information, and causes serious or potentially serious court, makes a false statement, s ubmits a false document, or improperly that disbarment is appropriate “when a lawyer, with the intent to deceive the effect on the legal proceeding.” Standards, supra § 6.12. The Standards advise a party to th e legal proceeding, or causes an adverse or potentially adverse withheld, and takes no remedial action, and causes injury or potential injury to being submitted to the court or that material information is improperly being is appropriate “when a lawyer knows that false statements or documents are petition in violation of Rule 3.3(a)(1). According to the Standards, su spension material facts and provide complete answers to questions in the bankruptcy Finally, the parties stipulated that the respondent failed to disclose

under the Standards. intention of benefiting himself. The respondent’s actions warr ant disbarment respondent violated his duty to his client and deceived Schneider with the or the legal system.” Standards, supra § 7.1. The facts show that the another, and causes serious or potent ially serious injury to a client, the public, duty owed as a professional with the intent to obtain a benefit for the lawyer or result “when a lawyer knowingly engages in conduct that is a violation of a serious injury to a client.” Standards, supra § 4. p. 6 61. Disbarment may also the intent to benefit the lawyer or another, and causes serious or potentially § 7.2. A lawyer may be disbarred “w hen [he] knowingly deceives a client with potential injury to a client, the public or the legal system.” Standards, supra that is a violation of a duty owed as a professional and causes injury o r Suspension is also appropriate “when a lawyer knowingly engages in conduct causes injury or potential injury to the client.” Standards, supra § 4.62. 6

acquire the property. premeditated scheme to deceive his client and the bankruptcy court in order to own personal gain. In sum, the multiple offenses here constituted a violated Rule 8.4(c) by deceiving his client and the bankruptcy co urt for his misleading responses to questions in the petition. Finally, the respondent intentionally deceiving the bankruptcy court in submitting materially becoming a holder of notes owed by his client. He violated Rule 3.3(a)(1) by consent. He violated Rule 1.8(a) by acquiring the three mortgages and failing to avoid conflicts of interest and failing to obtain his client’s informed T he respo ndent violated New Hampshire Rule of Professional Conduct 1.7(b) by factor. See Standards, supra § 9.22(d); Richmond’s Case, 152 N.H. at 1 p. 6 61. The respondent’s multiple offenses in this case are another aggravating

constitutes an aggravating circumstance. Nonetheless, the fact that the respondent has had other disciplinary actions before the respondent had been warned and sanctioned for the other incidents. that the misconduct involved in the representation of Schneider occurred diligence. N.H. R. Prof. Conduct 1.1(a), 1.1(b), 1.4(a), 1.3(a), 8.4(a). We note informed of the status of their case and failure to manage their case with due competently represent clients, failure to appear, failure to keep his clients suspension associated with an unrelated case based upon his failure to unrelated to this case. On March 15, 20 05, he received a six - month warning in October 1997 and a reprimand in December 2003 for misconduct factor. See Richmond’s Case, 152 N.H. at 1 p. 6 61. The respondent received a We have found that prior disciplinary offenses constitute an aggravating

agree that these factors are aggravating. disciplinary offenses, multiple offenses and dishonest or selfish motive. We The parties stipulate to the following aggravating factors: prior

w e do not find the passage of time to be a mitigating factor. the ABA Standards.” Given the lack of authority, and on the facts of this case, position and describes passage of time as “one mitigating fact not addressed by misconduct as a mitigating factor. The respondent cites no authority for this The respondent urges us to recognize the passage of time since his

recognize this to be a mitigating factor. displayed genuine remorse by admitting his misconduct in the stipulation, and of responsibility for his misconduct.” We acknowledge that the respondent coupled with an expression of ‘genuine remorse’ . . . and complete acce ptance for his cooperation with the disciplinary process because his cooperation was court. The committee states in its brief that, “[the respondent] deserves credit respondent admits to his misconduct toward Schn eider and the bankruptcy misconduct to truly demonstrate remorse.” Id. at 30. In the stipulation, the at 29 - 30. Where deceit is involved, “a lawyer must admit to his professional p. 7 7

more timely disposition of cases. burd ens on the attorney discipline system and complainants and result in 200 (1993). Likewise, agreements in attorney discipline cases may reduce more timely disposition of [the case].” State v. Woodsum, 13 p. 7 7 N.H. 198, 199 - “[save] the State and any witnesses the burdens of a trial and may result in a 109 N.H. 353, 355 (1969) (quotation omitted). In criminal cases, plea bargains . . . and of inestimable value in the administration of justice.” Hayes v. State, that agreements made between counsel in civil cases are “scrupulously kept proceedings and plea bargains in cri minal proceedings. We have recognized proceedings may have a value similar to negotiated agreements in civil panel and the committee. We recognize that stipulations in attorney discipline wa s negotiated by the respondent and the ADO and approved by a hearing In ordering disbarment, we have taken into account that the disposition

presenting false testimony to marital master in client’s divorce proceeding). misconduct); Basbanes’ Case, 141 N.H. 1 (1996) (attorney disbarred for means to secure financing on own home and fa iling to subsequently disclose Astles’ Case, 134 N.H. 602 (1991) (attorney disbarred for using fraudulent him property worth over $200,000 as payment for clearly excessive legal fees); for convincing an elde rly client experiencing mental deterioration to convey to cases. See, e.g., Coffey’s Case, 152 N.H. __, 880 A.2d 403 (attorney disbarred This sanction is commensurate with sanctions imposed in our prior

will receive the harshest sanction. and a tribunal over a span of several years with the intent to benefit himself bar that a lawyer who engages in a course of deceitful conduct toward a client 28. Disbarment is the only sanction that properly informs the public and the profession and prevent similar conduct in the future. Feld’s Case, 149 N.H. at maintain public confidence in the bar, preserve the integrity of the legal that attains the goals of the attorney discipline system to protect the public, responsibility for past misconduct, we find that disbarment is the only sanction that the respondent displayed genuine remorse by admitting to a nd taking and selfish motive and find that disbarment is appropriate. While we recognize factors of prior disciplinary sanctions, multiple rule violations and dishonest We have considered the respondent’ s misconduct and the aggravating

profession. in misconduct injurious to his client, the bankruptcy court and the legal deceive his client and the bankruptcy court for his own financial gain resulted in a course of misconduc t motivated by his self - interest. His willingness to representation of Schneider, and as recently as 2003, the respondent engaged most serious aggravating factor in this case. Over the course of his See, e.g., Coffey’s Case, 152 N.H. __, __, p. 8 880 A.2d 403, 414 (2005). This is the We have held that dishonest or selfish motive is an aggravating factor. 8

concurred. BRODERICK, C.J., and NADEAU, DALIANIS and GALWAY, JJ.,

enforcement of discipline in this case. Sup. Ct. R. 37(19). attorney discipline system for all expenses incurred in the investigation and We order the respondent disbarred and order him to reimburse the

misconduct, disbarment is warranted. the aggravating and mitigating factors and the egregious ness of the to exercise independent judgment in the process. We conclude that in light of inherent and statutory authority to discipline attorneys but the responsibility was negotiated by the respond ent and the ADO, this court not only has Although we have accorded considerable weight to the fact that this disposition 263 - 65 (1994). Accordingly, we are not bound by the terms of agreements. Discipl inary Proceedings: Civil or Criminal in Nature?, 19 J. Legal Prof. 257, nature. State v. Merski, 121 N.H. 901, 909 (19 p. 8 81); Strength, Attorney Attorney discipline proceedings, however, are not civil or criminal in